Ismail Lagardien: May be legal, but not ethical

In our daily conduct, as citizens in social contract with society, there comes a point at which what is legal meets what is ethical. At this point of contact there is often a collision of values, beliefs and practices (among others), the outcome of which is typically shaped by culture or tradition.

To the identity brokers that pock our politics, the reference to culture has nothing to do with ethnicity, race, creed, tribe or nationality.

Nonetheless, at the point of collision emerges a problem – the tension between what is legal and what is ethical.

In some cases, the lawyers might refer to the tension between the sanctity of contract and conceptions of good faith and equity, and notions of fairness.

It is worth bearing in mind that in a constitutional dispensation such as ours the sanctity of contracts is protected mainly for commercial certainty and economic predictability.

We have to accept, though, that across time and place, both concepts (legality and ethical conduct) are questioned, contested, imagined and re-imagined.

We can agree, nonetheless, that ethics has to do with a set of moral principles that governs right and wrong conduct in society.

How we conduct ourselves sends powerful messages that have emulative effects across society.

Hereafter, I should tread carefully.

My knowledge of the law is wafer thin.

What I do feel comfortable stating is that there are matters of fairness, good faith and the principles of freedom, dignity and equality (some of the underpinnings of ubuntu) which the courts have suggested, represent constitutional values.

This is certainly true in contract law. What, then, is the point of all this? It was reported some time last week that the state had spent almost R42-million on the procurement of luxury vehicles for cabinet ministers and their deputies between 2014 and this year. The Department of Rural Development and Land Reform spent R5 505 351 on ministerial cars.

Other high-rollers included the Department of Transport (R3 453 870), the Department of Justice (R3 275 138), the Department of Public Enterprise (R2 669 377), the Department of Agriculture (R2 502 425) and the Department of Telecommunications (R2 383 769).

The vehicles of choice were, unsurprisingly, some of the most expensive makes of cars in the world. Here is the rub. In almost all cases the purchases were all legal.

I should hastily add here that people are allowed to buy or own consumer products of their choice.

We cannot police people’s choices.

Truth be told, there is a camera I desperately want that costs more than R100 000 and if I could afford it, I would buy it.

As the wily Doc Holliday of the movies would say: My hypocrisy only goes so far.

But seriously, there is an argument to be made that when you are a state official or an office-bearer in a country that is rife with poverty, unemployment, hunger, homelessness, vast inequalities and desperate shortages in public transport, you might want to consider what messages you send to the public.

Public servants and elected officials are held to a different, often a higher standard, than civilians.

That is a principle that should guide the rules of governance – and of public policy-making.

To better understand governance, the rules and institutions that preside over our public and social conduct, we could do worse than return to the principles that underpin them.

Again, my knowledge of the law is terribly superficial, but when the law fails to provide administrative and distributive justice and fairness, we might want to consider changing the law.

In other words, if we do not like the fact that our cabinet ministers splash tens of millions of rand on luxury cars, we should have recourse to principles and change the laws.

Unethical behaviour often hides behind a fig leaf of legality.

Much of jurisprudence would contend that the sanctity of contracts prevails over fairness in the search of economic predictability, or commercial certainty.

This is achieved through enforcement of contracts that are, presumably, freely and properly entered into by all parties involved with little consideration of fairness.

I may be overstepping the mark, somewhat.

What does help, especially in public policy-making and governance, is if we have recourse to principles.

The principle I believe is equality.

South Africa’s courts have become over-burdened by the judicialisation of politics.

At the base of many claims that go before the Constitutional Court, for instance, is that the courts should be willing to apply constitutional values and apply (equally) laws that respond to the general needs of all South Africans, and curtail excesses and unethical conduct of vested interests and powerful groups.

Fairness may be a slippery concept in courts of law, but unethical conduct cannot forever hide behind policies and the law.

Dr Ismail Lagardien is executive dean of business and economics at NMMU.